The Perils of Kejriwal’s Democracy

Switzerland is the birthplace of the International Red Cross and the Geneva Conventions against egregious human-rights abuses. The country is regarded as a bastion of religious tolerance. Yet in 2009, Switzerland imposed a national ban on the construction of minarets, the prayer towers of mosques, in a nation-wide referendum of citizens. Because Switzerland is a country that has adopted “direct democracy,” the referendum’s verdict became the law of the land.

The law was met with widespread condemnation as an affront to religious freedom. David Diaz-Jogeix, Amnesty International’s deputy program director for Europe and Central Asia remarked: “That Switzerland, a country with a long tradition of religious tolerance and the provision of refuge to the persecuted, should have accepted such a grotesquely discriminatory proposal is shocking.”

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Jean Quatremer, a reporter with the French daily Libération, fittingly drew a link between the minaret ban and the perils of direct democracy, saying: “Once again, direct democracy has proved its extremely dangerous nature. By allowing people to express their fear of the other, their rejection of rationality and their focus on short-term interests, referendums are decidedly a dangerous instrument in the hands of demagogues of all stripes. It is easier to understand why several democratic countries have simply outlawed them.”

India is one of the many countries that have not adopted direct democracy. We are a representative democracy, where people elect their representatives to make laws and policies on their behalf. However, over the last couple of years, there has been an increasing clamor by Arvind Kejriwal and his supporters for a move toward a Swiss-type direct democracy. Mr. Kejriwal claims that direct legislation protects citizens by allowing them to circumvent corrupt lawmakers that are beholden to special interests.

Mr. Kejriwal has repeatedly called for the introduction of referendums and initiatives. A referendum is a method whereby people, by direct vote, can decide on a new law or policy or whether existing legislation passed by Parliament should be rejected. On the other hand, an initiative lets a group of citizens initiate new legislation or constitutional amendment by putting their draft to a nationwide direct vote. Recently, outraged by the manner in which the approval of foreign direct investment in multi-brand retail was voted on in the legislature, Mr. Kejriwal again stressed the need for a nation-wide referendum to decide the issue rather than a parliamentary vote.

The Swiss referendum banning minarets has great implications for demands for direct democracy in a country like India, which has many minority factions. It can be argued that mass participation exposes minority groups to potentially oppressive policy outcomes (like the Swiss minaret ban) that are favored by only a slim majority of the voters (i.e. 50% plus one vote.)

The examples of unfortunate initiatives put on ballots in American states that have adopted direct democracy drive home this point. Some of these initiatives include the elimination of bilingual programs for Hispanics, a prohibition on laws providing anti-discrimination protection for homosexuals, and the denial of basic access to health, education, and medical benefits for illegal immigrants.

Perhaps, this is why the framers of the Indian Constitution wanted laws to be made by elected representatives even though the interim president of the Constituent Assembly, Sachchidananda Sinha, had brought the Swiss Constitution to the attention of the drafters.

The framers instead relied heavily on the U.S. Constitution, the Commonwealth models in Canada and Australia and the British parliamentary system. In the case of the election of the President of India and the process of amending the Constitution, the framers expressly rejected the idea of a nation-wide referendum.

The government that the Constitution structured was about trying to spread power to prevent tyranny. That’s why, for instance, we have three branches, with separate executive, legislative and judicial powers. The Constitution also diffuses power through federalism: dividing power between the central and state governments. This balance is absent in direct democracy. Without the checks and balances of a representative, separated-powers system that encourages deliberation and minority representation, minority rights are at increased risk.

This is not to say, however, that all demands for direct democracy in India are irrelevant. Yehezkel Dror, a renowned political scientist, has observed that direct democracy can work reasonably well in small communities, where people have personal experience of most issues, provided that this is combined with a suitable deliberative process and the professional explanation of complex issues. Jean-Jaques Rousseau was also an advocate of direct democracy, but again only in small regions.

Direct democracy is a potent form of government when every citizen in a designated small precinct has the ability (and the will) to contribute to the discussion. To some extent, concerns of minority oppression, inherent in direct democracy, are also considerably alleviated when it is implemented at the local level over everyday affairs such as health, sanitation, and the provision of basic services. In small regions, the entire community can congregate and effectively discuss issues intertwined with their daily affairs.

Recognizing this tenet, the framers drafted Article 40 of the Constitution which mandates states to organize village “panchayats” of elected representatives and endow them with powers to enable them to function as units of self government. Further, “gram sabhas,” or gatherings of adult voters in the village, and the panchayats created under the 73rd and the 74th amendments to the Constitution are compelling examples of the type of direct democracy espoused by Professor Dror and Rousseau.

In urban areas, the Model Nagara Raj Bill of 2008 seeks to create a corresponding unit in cities to gram sabhas in rural areas. The bill is a mandatory reform under the Jawaharlal Nehru National Urban Renewal Mission, which means that states must enact community-participation legislation based on the bill to be eligible for funds under the JNURM program.

Mr. Kejriwal and his newly-formed political party are a rare, and perhaps unique, counterpoint to many political parties whose main problems are lack of fresh ideas, deep-rooted caste politics and corruption. At a time of turmoil in Indian politics, Mr. Kejriwal is an important outlier in the game. As Pratap Bhanu Mehta recently pointed out, Mr. Kejriwal’s readiness to put decentralization on the agenda is tantalizing. However, he should hold fast to constitutional methods and abandon the rhetoric on unconstitutional nation-wide referendums. As a start, he can speak more about the need for all states to urgently implement the bill establishing urban councils under the Model Nagara Raj Bill.

Karan Singh Tyagi is an associate attorney with a law firm in Paris, and graduate of the LL.M. programme at Harvard Law School.

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